Is this man a terrorist?

Many people across my Facebook feed are quick to call Christian pastor Josh Feuerstein a terrorist for a video he posted to his Facebook page back in July:

In case the video gets taken down, here's what Feuerstein said:

Planned Parenthood has hunted down millions and millions of little innocent babies, stuck a knife into the uterus, cut them, pulled them out, crushed their skull with forceps, ripped their body apart, sold their tissue, and threw them bleeding into a trash bin.

I say, tonight, we punish Planned Parenthood. I think it’s time that abortion doctors should have to run and hide and be afraid for their life.

This is pretty detestable stuff. But I don't think Feuerstein is a terrorist. In fact, I think his speech is probably protected. Let's review a little history...

In 1966, the NAACP ran meetings in Mississippi to organize protests and boycotts against white-owned businesses. The NAACP "store watchers" wrote down names of blacks who violated these boycotts. Names of boycott violators were read aloud at meetings and published in a local black newspaper. At one meeting, Charles Evers, the Field Secretary of the NAACP, stated: "If we catch any of you going in any of them racist stores, we're gonna break your damn neck."

This was a direct threat aimed by an NAACP official toward specific blacks who had been named, listed, and published as boycott violators. This is a much more direct threat than Feuerstein's video posted above. Yet the Supreme Court found that the store watchers' actions, and Evers' speech, was protected.

Unless speech is directed to inciting, and is likely to incite, imminent lawless action, it's protected by the First Amendment. It would be very difficult to argue that a Facebook video (posted last July) meets this standard. The mere advocacy of violence is not enough. No, in my opinion, this is not terrorism. Rather, it's very possible that this is protected speech. And yes, I'd stand up for his right to say these abhorrent things. That doesn't mean I agree with him.

A few thoughts on the law school's absurd and bizarre reaction to an offensive word

Recently, a law student from the University of Maryland made a Facebook post that included an allegedly offensive word. At some point the student realized the post might be offensive. She took it down and apologized.

At some point (whether before or after the apology is unclear), the administration of the law school became aware of the post and the Dean sent the following email:

Dear Members of the Community: 

It has come to my attention that a racially offensive term appeared on one of our student’s Facebook page. Among the features that most attracted me to this law school was the community’s longstanding commitment to diversity and to the highest levels of professionalism as part of its core values. https://www.umaryland.edu/about-umb/strategic-plan/about/core-values/.  Racially offensive remarks have no place in the discourse of those who aspire to become guardians of the legal profession. This student is now aware of the offending nature of the post, and is appropriately contrite. In consultation with members of the administration, the student is taking appropriate affirmative steps to convey apologies, and the student has recognized the gravity of the offense. 

Being a part of the profession of law is a great privilege, and it carries with it considerable responsibility. This includes sensitivity to the manner in which each of us comports himself or herself privately and in public. In addition, posts on social media remain there indefinitely and can continue to harm others. I cannot emphasize strongly enough the importance of giving great thought to anything you intend to post, e-mail, or tweet. In the era of social media, this is part of professional responsibility. 

Donald B. Tobin
Dean and Professor of Law

The exact text of the post has not been made public, but the student apologized to the law school community in a mass email:

...I posted about my new access to Wi-Fi, flippantly mentioning an old neighbor and their inappropriate choice for a network name. I later realized how offensive it was, so I deleted it and posted an apology....

The offensive word this student used in her Facebook post was the WiFi network name of an old neighbor. According to this student, the context of her post was to point out that the network name was inappropriate. Maybe it wasn't smart for this student to use an offensive word in her Facebook post. In that case, the student's apology to her Facebook friends certainly seems like enough. A lecture by the Dean and a school-wide apology seems a bit much, no? Context matters here, doesn't it?!

Nonetheless, the Student Bar Association sent a follow-up email strongly condemning any use of "certain words, phrases, and symbols carry with them an abhorrent history of a violence, discrimination, and oppression...These words are INHERENTLY wrong, in and of themselves...." More: "these words...directly represent a system of unfathomable injustice whose dregs continue to linger in the lives of every single American." The SBA explains how we should be offended: "Terms categorically saturated with racial animus should offend each and every one of us." I suppose it's not appropriate for me to determine what's offensive to me.

We are in the age of the Offending of America, where every week comes a new thing to be outraged about. Even so, this situation is absurd and the reactions by the Dean and the Student Bar Association are bizarre. This reaction ignores the reality and context of the situation to push a heavy-handed message that, in my opinion, chills the discussion of anything that might be considered offensive. Steer clear of any words that might be offensive because your career depends on it. Got it.

Law in Plain English: Reed v. Town of Gilbert, Arizona

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Reed v. Town of Gilbert, Arizona

Argument: TBD (Aud.)

Click image to visit ADF website

Background: Good News Community Church placed several signs around the area of its church announcing the time and location of its services. The Town of Gilbert, Arizona notified the Church that its signs were violating Gilbert's sign ordinance because the signs were displayed outside the statutorily-limited time period. The ordinance required that signs could not be erected without a permit, but that three categories of signs were exempted from the permit requirement: 1) temporary directional signs relating to qualifying events (no greater than six feet in height and six square feet in area; only to be displayed for 12 hours before and one hour after an event; not placed in the public right-of-way); 2) political signs (up to 32 square feet in size; erected at any time, but taken down within ten days after an election; may be placed in the public right­-of-way); and 3) ideological signs (not limited in time or number; may be placed in the public right-of-way). The district court found that the ordinance was not a content-based regulation; was a reasonable time, place, and manner restriction; and (on remand) did not favor some noncommercial speech over other commercial speech. The Ninth Circuit affirmed.

Issue: The question before the Court is whether the Town of Gilbert's mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code's differential treatment of petitioners' religious signs.

Holding: In a 9-0 decision, the Supreme Court ruled that the Sign Code’s provisions are content-based regulations of speech that do not survive strict scrutiny. Because content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. The Sign Code’s content-based restrictions do not survive strict scrutiny because the Town has not demonstrated that the Code’s differentiation between temporary directional signs and other types of signs furthers a compelling governmental interest and is narrowly tailored to that end.

Law in Plain English: Elonis v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Elonis v. United States

Argument: Dec 1 2014 (Aud.)

Background: After being fired from his job, Anthony Elonis made several posts on Facebook threatening former co-workers, his wife (who had a protection from abuse order against him), and federal law enforcement officers (who had visited him earlier that day to ask about his previous posts) (click here to read some of Elonis's threats). At trial, Elonis was convicted under 18 U.S.C. § 875(c) for "transmit[ing] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injury the person of another ... " The Third Circuit affirmed, finding that Elonis's Facebook threats were not protected by the First Amendment if a reasonable person would regard the statements as threatening.

Issue: The questions before the Court are (1) whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten.

Holding: In an 8-1 decision, the Supreme Court ruled that the Third Circuit’s instruction, requiring only negligence with respect to the communication of a threat, is not sufficient to support a conviction under Section 875(c). Section 875(c)’s mental state requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat.

Law in Plain English: Williams-Yulee v. The Florida Bar

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Williams-Yulee v. The Florida Bar

Argument: Jan 20 2015 (Aud.)

Background: In September 2009, Lanell Williams-Yulee became a candidate for County Court Judge, Group 10, Hillsborough County, Florida. On September 4, 2009, Williams-Yulee signed a campaign fundraising letter, in which she personally solicited campaign contributions. She admitted to having reviewed and approved the letter. A referee determined that Williams-Yulee violated Canon 7C(1) of the Florida Code of Judicial Conduct, which provides in pertinent part: “A candidate...for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds....” Williams-Yulee appealed, alleging that Canon 7C(1) violated the First Amendment. The Florida Supreme Court upheld the finding, ruling that Canon 7C(1) served compelling State interests in protecting the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary; and that it was narrowly tailored to effectuate those interests.

Issue: The question before the Court is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.

Holding: In a 5-4 decision, the Supreme Court ruled that Florida Bar's rule was narrowly tailored to serve the State’s compelling interest in preserving public confidence in the integrity of its judiciary. As a result, the Rule did not violate the First Amendment.

Garrett Epps is Right (and Wrong) on Indiana's RFRA

Indiana Gov. Mike Pence

In his latest article at the Atlantic, Professor Garrett Epps highlights two key differences between Indiana's recently-passed state RFRA law and the federal RFRA law. The first distinction is that Indiana's law provides explicit protection for for-profit businesses. The second distinction is that Indiana's RFRA provides a defense for claims against private lawsuits where the government isn't a party. Professor Epps is right that these two differences do not exist within the text of the federal RFRA law (or most state RFRA laws). But a cursory examination of these two issues shows that Professor Epps is wrong when he asserts that these differences are significant.

First, whatever one may think of RFRA protection for for-profit businesses prior to Hobby Lobby, that case is now the "law of the land" and its protection is effectively written into law. Epps suggest that, pre-Hobby Lobby, many believe this idea was "outlandish," but that's beside the point post-Hobby Lobby (I think it was perfectly reasonable, but we can agree to disagree here). So while the federal RFRA law does not contain the same language as Indiana's RFRA law, the end result is precisely the same. Any federal court ruling on a RFRA claim today would rule with the understanding that for-profit businesses are protected by RFRA. It is disingenuous to suggest that this provision is a significant difference from the federal law since Hobby Lobby. As to the states, Epps can point to only two (Louisiana and Pennsylvania) that specifically exclude for-profit businesses. It is not unreasonable to believe that other states may fall in line with the the federal interpretation, especially since some states, like Arkansas's recently passed RFRA, look to the federal courts for interpretation. Absent court decisions (beyond the singular Elane Photography) that specifically exclude for-profit businesses, it is a difficult leap to suggest this distinction is significantly different. 

Second, Epps focuses on the language in Indiana's RFRA which provides RFRA protection "regardless of whether the state or any other governmental entity is a party to the proceeding." He then claims that "[n]either the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language." Again, this is a true statement, but it excludes important context. As Josh Blackman has pointed out, of the six federal Circuits that have ruled on the issue, four of them have held that the federal RFRA law may be used as a defense in a private lawsuit. Within these four Circuits (the Second, Eighth, Ninth, and D.C. Circuit), RFRA is a defense in a private lawsuit, just as it would be under Indiana's state RFRA. To be sure, the Supreme Court has not ruled on whether the federal RFRA extends to private party lawsuits. Blackman also points out that the Justice Department under Attorney General Eric Holder wrote that it believed Wheaton College (a private party) could use RFRA as a defense to a lawsuit by one of it's employees (another private party). Given that the majority of circuits that have ruled on the issue have ruled this way, consistent with the Justice Department's apparent position on the issue, it is puzzling for Professor Epps to exclude this information in his article. Based on the lack of state RFRA cases regarding private parties, this distinction (as it applies to state RFRAs) is most generously described as undetermined rather than significantly different.

Professor Epps points to two reasons why Indiana's RFRA law is significantly different from the federal RFRA, but these distinctions start to fade away once you take a closer look.

Conflicts between the federal government and the states: who wins?

My good friend Joshua Marpet asked me on Facebook to compare the following two situations: 

Medical Marijuana is legal to states, but federally illegal. On the other hand, he cited an article where a state Representative in Texas was attempting to pass a state law which would seek to criminalize the public recording of police, or otherwise exempt only a defined set of news media from such criminalization.

These two issues are both related and different. Let's tackle the marijuana issue. Marijuana is a Schedule I drug under the Controlled Substances Act; and its manufacture, importation, possession, use and distribution is illegal by federal law. That some states have legalized marijuana for medical uses (or for recreational uses) does not change this fact. This is a Supremacy Clause issue. That clause reads:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

What this means is that when federal and state laws conflict, the federal law wins.  So the federal government could go into every state that has legalized marijuana in any way, and shut down their operations. People who otherwise would be permitted to use marijuana by their states could still be subject to federal criminal penalties for those uses.  Such actions would be fully consistent with the Supremacy Clause and the Constitution. The only difference here is that the federal government has largely chosen to acquiesce to the states on this issue (probably as a result of growing public acceptance). But this doesn't prevent the federal government from changing its mind regarding the enforcement of federal laws in the future. Another administration less tolerant of state marijuana laws could, consistent with the Supremacy Clause and the Constitution, enforce federal law in states that have otherwise legalized marijuana.

A good example of a proposed law that would likely fail on Supremacy Clause grounds (and for other reasons, such as separation of powers) is a proposed Utah law to cut off water to the new NSA facility in Bluffdale, Utah. Proposed laws like these, and others under the category of nullification (a long-ago discredited doctrine), simply don't pass muster.

The second issue involves whether a state can proscribe (or prohibit) conduct which is presumably legal under federal law. A short aside: the cited article suggests that criminalizing the recording of police "could be considered an act of defiance to mountains of legal precedent set forth by the Supreme Court of the United States." To be sure, the Supreme Court has never ruled on the specific issue of whether citizens have a legal right to film the police. The case that the article cites is Glik v. Cunniffe, which is a First Circuit case. The holding in this case only applies to the First Circuit; but for the purposes of this post, let's assume that indeed, the Supreme Court had affirmed the Glik decision.

In the area of individual rights, the federal government (or more precisely, the federal courts) set the minimum standard as to what is permitted. The states can provide more protection to individual rights, but not less; so long as those rights do not infringe on any federal constitutional rights. Here are two examples. First, in Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), the Supreme Court held that DUI checkpoints were reasonable under the Fourth Amendment. Nonetheless, a number of states have found such checkpoints to violate the state constitutions or have otherwise outlawed them. Here, the states are providing more protection to individual rights of its citizens than the federal government, and as a result, this is permissible. Second, the Supreme Court has held that people generally do not have freedom of speech in private shopping centers; but on the other hand, California's constitution provides greater protection to speech than the First Amendment. So in California, people can exercise free speech even in a privately-owned shopping center. This too is permissible.

The proposed legislation in the cited article appears to do expressly the opposite: it purports to provide less protection to individual rights than is already permitted by federal law (again, assuming that Glik had been affirmed by the Supreme Court). When states attempt to restrict the rights of its people more than the federal government does, this rules afoul of--you guessed it--the Supremacy Clause. Even now--when there is no Supreme Court ruling affirming the right of people to film the police--I suspect a state law like the one proposed above would violate the First Amendment.

I hope this adequately answers the question!

Elonis Facebook Threats

This page is a supplement to my case page on Elonis v. United States. It contains an except from the Third Circuit's opinion that includes some of the threats Elonis posted on Facebook. For a summary of the case, click here.

Following the issuance of the state court Protection From Abuse order, Elonis posted several statements on Facebook expressing intent to harm his wife. On November 7 he wrote:

Did you know that it's illegal for me to say I want to kill my wife?
It's illegal.
It's indirect criminal contempt.
It's one of the only sentences that I'm not allowed to say.
Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife.
I'm not actually saying it.
I'm just letting you know that it's illegal for me to say that.
It's kind of like a public service.
I'm letting you know so that you don't accidently go out and say something like that
Um, what's interesting is that it's very illegal to say I really, really think someone out there should kill my wife.
That's illegal.
Very, very illegal.
But not illegal to say with a mortar launcher.
Because that's its own sentence.
It's an incomplete sentence but it may have nothing to do with the sentence before that. So that's perfectly fine. Perfectly legal.
I also found out that it's incredibly illegal, extremely illegal, to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you'd have a clear line of sight through the sun room.
Insanely illegal.
Ridiculously, wrecklessly, insanely illegal.
Yet even more illegal to show an illustrated diagram.
Exhibit
Insanely illegal.
Ridiculously, horribly felonious.
Cause they will come to my house in the middle of the night and they will lock me up.
Extremely against the law.
Uh, one thing that is technically legal to say is that we have a group that meets Fridays at my parent's house and the password is sic simper tyrannis.

Tara Elonis testified at trial that she took these statements seriously, saying, "I felt like I was being stalked. I felt extremely afraid for mine and my children's and my families' lives." Trial Tr. 97, Oct. 19, 2011. Ms. Elonis further testified that Elonis rarely listened to rap music, and that she had never seen Elonis write rap lyrics during their seven years of marriage. She explained that the lyric form of the statements did not make her take the threats any less seriously.

On November 15 Elonis posted on his Facebook page:

Fold up your PFA and put it in your pocket Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place Me thinks the judge needs an education on true threat jurisprudence
And prison time will add zeroes to my settlement
Which you won't see a lick
Because you suck dog dick in front of children
* * *
And if worse comes to worse
I've got enough explosives to take care of the state police and the sheriff's department
[link: Freedom of Speech, www.wikipedia.org]

This statement was the basis both of Count 2, threats to Elonis's wife, and Count 3, threats to local law enforcement. A post the following day on November 16 involving an elementary school was the basis of Count 4:

That's it, I've had about enough
I'm checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined
And hell hath no fury like a crazy man in a kindergarten class
The only question is . . . which one?

By this point FBI Agent Denise Stevens was monitoring Elonis's public Facebook postings, because Dorney Park contacted the FBI claiming Elonis had posted threats against Dorney Park and its employees on his Facebook page. After reading these and other Facebook posts by Elonis, Agent Stevens and another FBI agent went to Elonis's house to interview him. When the agents knocked on his door, Elonis's father answered and told the agents Elonis was sleeping. The agents waited several minutes until Elonis came to the door wearing a t-shirt, jeans, and no shoes. Elonis asked the agents if they were law enforcement and asked if he was free to go. After the agents identified themselves and told him he was free to go, Elonis went inside and closed the door. Later that day, Elonis posted the following on Facebook:

You know your shit's ridiculous when you have the FBI knockin' at yo' door
Little Agent Lady stood so close
Took all the strength I had not to turn the bitch ghost
Pull my knife, flick my wrist, and slit her throat Leave her bleedin' from her jugular in the arms of her partner
[laughter]
So the next time you knock, you best be serving a warrant
And bring yo' SWAT and an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb
Why do you think it took me so long to get dressed with no shoes on?
I was jus' waitin' for y'all to handcuff me and pat me down
Touch the detonator in my pocket and we're all goin'
[BOOM!]

A few thoughts on Hobby Lobby and for-profit corporations

One of the most interesting distinctions, and perhaps the most crucial distinction, in the Obamacare contraceptive mandate cases is not whether corporations can "practice" religion, but the differences between a non-profit corporation and a for-profit corporation.* Many opponents of the decision have argued that a corporation cannot practice religion. But this ignores a long-standing understanding of the Religious Freedom Restoration Act. Under RFRA, no one (not even the dissenters on the Supreme Court) questions that a non-profit corporation like a church can practice religion. Non-profit corporations are unambiguously covered by RFRA and the Free Exercise Clause. For if RFRA does not cover a church, then what is it good for?

(Nor is RFRA part of some ridiculous notion of a "war on women" by Republicans: The Religious Freedom Restoration Act was introduced in the House by then-Representative Chuck Schumer (D-NY) and 169 other co-sponsors, and passed by a voice vote. It passed the Senate by 97-3. President Clinton signed it into law. It was backed by the New York Times. It was primarily designed to protect Native American religions from the federal government.)

Rather, you must be able to make a principled distinction as to why a non-profit corporation like a church can practice religion, but that a for-profit corporation like Hobby Lobby or Conestoga Wood Specialties or Mardel cannot. In my opinion, the dissent tries but fails to do this in a convincing way. The Dictionary Act, a federal law codified at 1 U.S.C. § 1, states that

In determining the meaning of any Act of Congress, unless the context indicates otherwise—

...

the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals....

(Yes, you read that right: since 1947, federal law says that anytime another law refers to "person" it includes corporations).

The dissent argues that "the context indicates otherwise," but this is not convincing. The only defining difference is profit, but "that dog don't hunt." Making profit is not mutually exclusive with practicing religion.   It is not, as the dissent suggests, that "religious exemptions had never been extended to any entity operating in 'the commercial, profit-making world,'" but rather that RFRA, when combined with the Dictionary Act, makes no such distinction. The dissent, in my opinion, must do better than this.

Good and smart people can disagree about the scope of RFRA, as evidenced by the 5-4 vote in this case. But when you try to argue that corporations cannot practice religion, without understanding that non-profit corporations are already unambiguously protected in this regard, you start to look foolish. To start to convince me, find a principled distinction between a non-profit corporation and a for-profit corporation that goes beyond the profit motive.

* A reminder: It is important to note the distinction that the holding in this case does not apply to all corporations, just those that are defined as closely-held. The IRS defines a closely-held corporation as one in which more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and is not a personal service corporation.

Law in Plain English: McCullen v. Coakley

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Planned Parenthood's clinic in Boston, MA. The
yellow line on the sidewalk and street marks the
35-feet buffer zone. Image from Google Street View.

SCOTUSblog: McCullen v. Coakley

Argument: Jan 15 2014 (Aud.)

Discussion: The Massachusetts legislature passed a law that created fixed and floating buffer zones around abortion clinics. In 2007, the legislature amended the statute to create a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of abortion clinics. McCullen and other plaintiffs regularly engage in "sidewalk counseling" at abortion clinics, but argue that the buffer zones prevent close personal contact with their intended audience and, thus, impede their ability to communicate effectively. The District Court ruled that the statute is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others; and the First Circuit affirmed.

Planned Parenthood's Springfield, MA clinic has
white arcs painted on the street to represent the
buffer zone. Image from Google Street View.

Issue: The questions before the Court are (1) whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents...acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; (2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

Holding:  In a 9-0 decision, the Supreme Court ruled that the Massachusetts law which makes it a crime to stand on a public road or sidewalk within thirty-five feet of a reproductive health care facility violates the First Amendment.

Planned Parenthood's Worcester, MA clinic has
white arcs painted on the street to represent the
buffer zone. Image from Google Street View.

Law in Plain English: Harris v. Quinn

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Harris v. Quinn

Argument: Jan 21 2014 (Aud.)

Background: Pamela Harris and others provide in-home care to disabled individuals through Medicaid-waiver programs run by the Illinois Department of Human Services. Some are part of the Home Services Program administered by the Division of Rehabilitation Services ("Rehabilitation Program"). The others are part of the Home Based Support Services Program administered by the Division of Developmental Disabilities ("Disabilities Program").

In 2003, a majority of the approximately 20,000 Rehabilitation Program personal assistants voted to designate SEIU Healthcare Illinois & Indiana as their collective bargaining representative with the State. The Union and the State negotiated a collective bargaining agreement, including a "fair share" provision requires "all Personal Assistants who are not members of the Union...to pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment." Harris and the others allege that a collective bargaining agreement that requires Medicaid home-care personal assistants to pay a fee to a union representative violates the First Amendment. The Seventh Circuit held that that personal assistants in the Illinois home-care Medicaid waiver program were State employees that may be compelled to support legitimate, non-ideological, union activities germane to collective-bargaining representation.

The Disabilities Program plaintiffs successfully rejected unionization and were not subject to fair share fees, but feared that may change at any time. The Seventh Circuit dismissed the Disabilities Program plaintiffs' claims for lack of jurisdiction because they were not ripe for adjudication.

Issue: The questions before the Court are (1) whether a state may, consistent with the First and Fourteenth Amendments to the United States Constitution, compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the state for greater reimbursements from its Medicaid programs; and (2) whether the lower court erred in holding that the claims of providers in the Home Based Support Services Program are not ripe for judicial review.

Holding: In a 5-4 decision, the Supreme Court ruled that the First Amendment prohibits the collection of an agency fee from Rehabilitation Program PAs who do not want to join or support the union.

Law in Plain English: Obamacare contraceptive mandate cases

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Burwell v. Hobby Lobby Stores, Inc. (consolidated with Conestoga Wood Specialties Corp. v. Burwell)

Argument: Mar 25 2014 (Aud.)

Discussion: Hobby Lobby and Mardel (a craft store chain and a Christian bookstore chain, respectively) and Conestoga Wood Specialties (a manufacturer of wood cabinets) brought actions challenging an Affordable Care Act regulation that requires them to provide certain contraceptive services as a part of their employer-sponsored health care plan. Among these services are drugs and devices that the employers believe to be abortifacients, the use of which is contrary to their faith. The employers grounded their claims in the Free Exercise Clause of the First Amendment, and the Religious Freedom Restoration Act (RFRA), a federal law aimed at preventing laws that substantially burden a person's free exercise of their religion. The Tenth Circuit ruled that Hobby Lobby and Mardel were "Persons Exercising Religion" Under RFRA, and thus entitled to bring their claims. On the other hand, the Third Circuit ruled that for-profit, secular corporations like Conestoga Wood Specialties could not engage in religious exercise, and as a result, were not entitled to protection under the Free Exercise Clause of the First Amendment and the RFRA.

Issue: The question before the Court in Hobby Lobby is whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.

The question before the Court in Conestoga Wood Specialties is whether the religious owners of a family business, or their closely held, for-profit corporation, have free exercise rights that are violated by the application of the contraceptive-coverage mandate of the Affordable Care Act.

Holding: In a 5-4 decision, the Supreme Court ruled that, as applied to closely held corporations, the HHS regulations implementing the contraception mandate violate the RFRA. It is important to note the distinction that the holding in this case does not apply to all corporations, just those that are defined as closely-held. The IRS defines a closely-held corporation as one in which more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and is not a personal service corporation.

Law in Plain English: Susan B. Anthony List v. Driehaus

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Susan B. Anthony List v. Driehaus

Argument: Apr 22 2014 (Aud.)

Background: Shortly before the 2010 general election, then-Congressman Steven Driehaus filed a complaint with the Ohio Elections Commission against Susan B. Anthony List (SBA List), a pro-life advocacy organization that planned to run advertisements against him. SBA List then initiated a lawsuit seeking declaratory and injunctive relief against Driehaus, the Commission's members, and the Ohio Secretary of State. The Coalition Opposed to Additional Spending and Taxes (COAST), an anti-tax advocacy organization, filed a similar federal action, although no state proceedings had been brought against it. When Driehaus lost his bid for reelection, he filed a motion to withdraw his Commission complaint. SBA List consented to this and the Commission proceedings ceased. SBA List then amended its complaint to allege that the Commission proceedings following Driehaus's complaint chilled its speech and associational rights. This could happen again, SBA List alleged, if any complainant decided to hale the organization before the Commission. SBA List stated its intent to engage in "substantially similar activity in the future" and offered that Driehaus "may run for Congress again." COAST also filed suit against only the Commission. It claimed that it did not publish its own messages because its knowledge of the Commission proceedings against SBA List chilled its ability to speak. The district court granted the defendants' motions to dismiss on standing, ripeness, and mootness grounds. The Sixth Circuit affirmed, ruling that neither SBA List nor COAST's allegations were ripe.

Issue: The questions before the Court are (1) whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold; and (2) whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree.

Holding: In a unanimous decision, the Supreme Court ruled that that petitioners have alleged a sufficiently imminent injury under Article III to enable them to challenge the constitutionality of the false statement law.

Law in Plain English: Wood v. Moss

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Wood v. Moss

Argument: Mar 26 2014 (Aud.)

Discussion: Michael Moss and other anti-Bush protesters brought a Bivens action against United States Secret Service agents Tim Wood and Rob Savage, who were assigned to protect President George W. Bush during a 2004 campaign appearance in Oregon. The protestors' complaint alleges that the agents engaged in viewpoint discrimination in violation of their First Amendment rights when the agents moved them (but not another group of pro-Bush demonstrators) to create a security perimeter around the President. The Nith Circuit ruled that the anti-Bush protestors had alleged a plausible First Amendment claim and that Agents Wood and Savage were not entitled to qualified immunity.

Issue: The questions before the Court are (1) whether the court of appeals erred in denying qualified immunity to Secret Service agents protecting the president by evaluating the claim of viewpoint discrimination at a high level of generality and concluding that pro- and anti-Bush demonstrators needed to be positioned an equal distance from the President while he was dining on the outdoor patio and then while he was travelling by motorcade; and (2) whether respondents have adequately pleaded viewpoint discrimination in violation of the First Amendment when no factual allegations support their claim of discriminatory motive and there was an obvious security-based rationale for moving the nearby anti-Bush group and not the farther-away pro-Bush group.

Holding: In a unanimous decision, the Supreme Court ruled that the agents were entitled to qualified immunity.

Law in Plain English: Town of Greece v. Galloway

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Town of Greece v. Galloway

Argument: Nov 6 2013 (Aud.)

Background: Since 1999, the Town of Greece, New York, has begun its Town Board meetings with a short prayer. In 2008, Galloway and other  town residents brought suit against the town, asserting that aspects of this prayer practice violated the First Amendment's Establishment Clause. The District Court rejected the claim and ruled for the town. The Second Circuit reversed, concluding that an objective, reasonable person would believe that the town's prayer practice had the effect of affiliating the town with Christianity. The Government filed an amicus brief supporting the position of the town.

Issue: The question before the Court is whether the Court of Appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

Holding: In a 5-4 decision, the Supreme Court ruled that the town’s prayer practice does not violate the Establishment Clause. Legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause, and insistence on nonsectarian prayer is not consistent with this tradition.

Law in Plain English: McCutcheon v. Federal Election Commission

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: McCutcheon v. Federal Election Commission

Argument: Oct 8 2013 (Aud.)

Background: Congress enacted the Federal Elections Campaign Act of 1971 (FECA) to "promote fair practices in the conduct of election campaigns for Federal political offices." In 1974, Congress amended FECA to prohibit persons from contributing more than $1,000 to any political candidate, individuals from contributing more than an aggregate of $25,000 in any calendar year, and political committees from contributing more than $5,000 to any political candidate. In 2002, Congress passed  the Bipartisan Campaign Reform Act of 2002 (BCRA, popularly known as the McCain-Feingold Act) which replaced the $25,000 aggregate limit with a bifurcated limiting scheme of base limits (not being challenged here) and aggregate limits. During each two-year period starting in an odd-numbered year, no individual may contribute more than an aggregate of $46,200 to candidates and their authorized committees or more than $70,800 to anyone else. Of that $70,800, no more than $46,200 may be contributions to political committees that are not national political party committees. These aggregate limits, which amount to a total biennial limit of $117,000, thus prevent individuals from contributing the statutory maximum to more than eighteen candidates. McCutcheon wanted to contribute more; his additional candidate contributions would amount to aggregate candidate contributions of $54,400. A three-judge panel of the United States District Court for the District of Columbia denied McCutcheon's claim.

Issue: The question before the Court is whether the biennial, aggregate limit on contributions to non-candidate committees is unconstitutional as a violation of the First Amendment.

Holding: In a 5-4 decision, the Supreme Court ruled that the aggregate limits do not further the permissible governmental interest in preventing quid pro quo corruption or its appearance. As a result, the aggregate limits violate the First Amendment and are not constitutional. Justice Thomas did not join the majority opinion, but concurred in the judgment only. Nonetheless, he agreed that the aggregate limits are invalid under the First Amendment, but would go further than the majority and overrule Buckley v. Valeo, 424 U. S. 1, and subject BCRA’s aggregate limits to strict scrutiny, where (he says) they would surely fail.

Obamacare is headed back to the Supreme Court--and here's why it's a big deal

UPDATE: My case page is here.

As I noted the other day, the the Supreme Court granted cert in two cases (Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius) challenging the Obamacare contraceptive mandate.

The Affordable Care Act contains a regulation that requires employers to provide certain contraceptive services as a part of their employer-sponsored health care plan. To be clear, these employers are not challenging the provision of all contraceptives--just some of them. Among these contraceptive services in question are drugs and devices that the plaintiffs believe to be abortifacients, the use of which is contrary to their faith.

It is true that, as a practical matter, these cases will not likely have a huge impact on Obamacare itself--at stake is one small provision of the law, not the individual mandate at the center of NFIB v. Sebelius. Rather, what makes these cases a big deal is nexus of Obamacare and Citizens United, the case in which the Supreme Court held that the First Amendment prohibits the government from restricting political independent expenditures by corporations, associations, or labor unions. While corporations have had some personhood rights at early as the 19th century, the public perception of corporate personhood rights is strongly tied to the unpopular Citizens United decision. Furthermore, the Supreme Court is poised to expand Citizens United when it rules in McCutcheon v. FEC.

As a result, the combination of an unpopular Citizens United decision (potentially expanded by McCutcheon) with the controversial Obamacare contraceptive mandate is a high profile mix of politics and religion--sure to be a big deal when the decision comes down (quite possible a 5-4 decision the last week of June).

Can a wedding photographer be compelled to provide services to a same-sex couple?

Yes, says the New Mexico Supreme Court:

{1} By enacting the New Mexico Human Rights Act (NMHRA), NMSA 1978, §§ 28-1-1 to -13 (1969, as amended through 2007), the Legislature has made the policy decision to prohibit public accommodations from discriminating against people based on their sexual orientation. Elane Photography, which does not contest its public accommodation status under the NMHRA, offers wedding photography services to the general public and posts its photographs on a password-protected website for its customers. In this case, Elane Photography refused to photograph a commitment ceremony between two women. The questions presented are (1) whether Elane Photography violated the NMHRA when it refused to photograph the commitment ceremony, and if so, (2) whether this application of the NMHRA violates either the Free Speech or the Free Exercise Clause of the First Amendment to the United States Constitution, or (3) whether this application violates the New Mexico Religious Freedom Restoration Act (NMRFRA), NMSA 1978, §§ 28-22-1 to -5 (2000). 

{2} First, we conclude that a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the antidiscrimination provisions of the NMHRA and must serve same-sex couples on the same basis that it serves opposite-sex couples. Therefore, when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races.  

{3} Second, we conclude that the NMHRA does not violate free speech guarantees because the NMHRA does not compel Elane Photography to either speak a government mandated message or to publish the speech of another. The purpose of the NMHRA is to ensure that businesses offering services to the general public do not discriminate against protected classes of people, and the United States Supreme Court has made it clear that the First Amendment permits such regulation by states. Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws. We also hold that the NMHRA is a neutral law of general applicability, and as such, it does not violate the Free Exercise Clause of the First Amendment. 

{4} Finally, we hold that the NMRFRA is inapplicable in this case because the government is not a party. For these reasons, we affirm the judgment of the Court of Appeals.

Chief Justice Roberts on free speech

From Chief Justice Roberts' majority opinion in Snyder v. Phelps, 131 S. Ct. 1207 (2011):

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and...inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

"I dare you to step over this line!"

Remember this one?

When Bugs Buggy dared Yosemite Sam to step over the line, I suspect he didn't think it would turn out to be a federal case. Nonetheless, two cases in the upcoming Supreme Court term quite literally involve lines in the sand, er, ground.

United States v. Apel: Dennis Apel is a frequent protester at the front gate of  Vandenberg Air Force Base. He was as subject to a pre-existing order barring him from the base, and was convicted of trespassing under 18 U.S.C. § 1382. After his conviction, the Ninth Circuit ruled in another case that a stretch of highway running through the base was subject to an easement "granted to the State of California, which later relinquished it to the County of Santa Barbara," and as a result the federal government lacked the exclusive right of possession of the area on which the trespass allegedly occurred. Therefore, a trespassing conviction under § 1382 was not valid. In a per curiam decision, the Ninth Circuit reversed Apel's conviction. The Supreme Court will decide whether a federal law which prohibits a person from reentering a military installation after a commanding officer has ordered him not to reenter, may be enforced on a portion of a military installation that is subject to a public roadway easement. The protest area outside the front gate of the base is represented by the green line painted on the road in the image below.

McCullen v. Coakley: The Massachusetts legislature passed a law that created fixed and floating buffer zones around abortion clinics. In 2007, the legislature amended the statute to create a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of abortion clinics. McCullen and other plaintiffs regularly engage in "sidewalk counseling" at abortion clinics, but argue that the buffer zones prevent close personal contact with their intended audience and, thus, impede their ability to communicate effectively. The District Court ruled that the statute is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others; and the First Circuit affirmed. The Supreme Court will decide (1) whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents...acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; (2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled. One of the clinic buffer zones is indicated by the painted white arc in the image below.